R v NGUYEN - [2022] SASCA 124

Supreme Court of South Australia
(Court of Appeal: Criminal)
R v NGUYEN
[2022] SASCA 124
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
1 December 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING HEROIN
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - GAMBLING ADDICTION
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - SUBSTANCE ABUSE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OFFENDER
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - PARTICULAR CASES
The respondent pleaded guilty to three counts of trafficking in a controlled drug, namely heroin, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
The sentencing Judge proceeded pursuant to s 26 of the Sentencing Act 2017 (SA) and imposed a single penalty in respect of all three offences. The sentencing Judge commenced with a starting point of five years imprisonment. This was reduced by 35 per cent on account of the respondent’s guilty pleas and further reduced by four months for time spent in custody and on home detention bail. This resulted in a head sentence of imprisonment for two years and 11 months. The respondent was a serious repeat offender pursuant to s 53(1)(a) of the Sentencing Act 2017 (SA). Accordingly, a non‑parole period of two years and four months was fixed, that being four-fifths of the head sentence.
The sentencing Judge ordered that the sentence be served on home detention bail, subject to conditions.
The Director of Public Prosecutions (SA) complains that the sentence is manifestly inadequate by reason of its length and the granting of a home detention order.
Held, per the Court, granting permission to appeal and allowing the appeal:
1.The sentence is manifestly inadequate. To allow the sentence to remain would undermine public confidence in the administration of justice notwithstanding the public interest in ensuring that the respondent is not twice vexed.
2.The respondent is resentenced. In relation to Count 1, the Court imposes a sentence of imprisonment for four years. As to Counts 2 and 3, pursuant to s 26 of the Sentencing Act 2017 (SA), the Court imposes one penalty of imprisonment for seven years to be served concurrently with the earlier sentence. Both the head sentence and non-parole period is reduced by 35 per cent on account of the respondent’s guilty pleas to four years, six months, and 19 days with a non-parole period of three years and four months, that being approximately four-fifths of the head sentence. The sentence is further reduced by four months on account of time spent in custody and on home detention bail, and by three months for time served on home detention as part of the quashed sentence. Accordingly, the Court imposes a head sentence of imprisonment for three years, 11 months and 19 days with a non-parole period fixed at three years and one month.

3. The sentence is to commence on the date the respondent is taken into custody.
Criminal Law Consolidation Act 1935 (SA) s 32(3); Sentencing Act 2017 (SA) ss 26, 53(1)(a), 71, referred to.
Dinsdale v The Queen (2000) 202 CLR 321; Everett v The Queen (1994) 181 CLR 295; Hili v The Queen (2010) 242 CLR 520; Johnson v The Queen (2004) 78 ALJR 616; Markarian v The Queen (2005) 228 CLR 357; R v Best [2017] SASCFC 55; R v Dell (2016) 126 SASR 571; R v Filipponi (2016) 126 SASR 464; R v McIntosh [2017] SASCFC 87; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Young (2016) 126 SASR 41, considered.

R v NGUYEN
[2022] SASCA 124
Court of Appeal – Criminal: Livesey P, Bleby and David JJA

THE COURT: This is an appeal by the Director of Public Prosecutions (the ‘Director’) against sentence. The respondent pleaded guilty to three counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1982 (SA). The offences were committed on 23 August and 25 August 2021.
On 15 June 2022, the sentencing Judge proceeded pursuant to s 26 of the Sentencing Act 2017 (SA) (the ‘Sentencing Act’) and imposed one penalty in respect of all three offences. Her Honour adopted a starting point of imprisonment for five years, which was reduced by 35 per cent on account of the respondent’s guilty pleas and further reduced by four months for time spent in custody and on home detention bail. That resulted in a head sentence of imprisonment for two years and 11 months. The respondent fell to be sentenced as a serious repeat offender pursuant to s 53(1)(a) of the Sentencing Act. Accordingly, her Honour imposed a non-parole period of two years and four months, that being four‑fifths of the head sentence. Her Honour ordered that the sentence be served on home detention bail, subject to conditions.
The Director seeks permission to appeal on the sole ground that the sentence was manifestly inadequate. The particulars of that ground relate to the length of the sentence and the making of a home detention order.
The respondent’s offending
The factual circumstances of the offending are not in dispute.
On 23 August 2021, police observed the respondent sitting in a vehicle in a commercial carpark at Athol Park. A male carrying a spoon approached the driver’s side front window and spoke with the respondent for a brief time before getting into another parked vehicle and leaving. The male was stopped by police and found to be in possession of a quantity of heroin on a spoon. It was alleged the respondent had sold that heroin to the male (Count 1).
On 25 August 2021, police arrested the respondent outside her home in Mansfield Park. She was carrying a shopping bag which contained four packages, inside of which were 26 wraps containing heroin with an approximate total weight of 20 grams (Count 2).
A search of the respondent’s home found two additional quantities of heroin with a combined total weight of approximately 60 grams of substance containing heroin (Count 3).
The respondent has a history of drug trafficking spanning over a decade. On 23 March 2011, she was sentenced to three years imprisonment with a non-parole period of 14 months after pleading guilty to three counts of trafficking in heroin and two counts of possession of a controlled drug for supply to another person, namely heroin and methylamphetamine. Those offences were committed between 20 August 2009 and 27 August 2010.
On 6 November 2017, the respondent was sentenced to four years and six months imprisonment with a non-parole period of two years for six counts of trafficking in heroin and one count of unlawful possession of cash. Those offences were committed between 8 September and 22 September 2014. The respondent was jointly charged with her estranged husband. She was sentenced on the basis that she willingly involved herself in the distribution of heroin for financial gain.
In the present case it was accepted before the sentencing Judge that the respondent fell to be sentenced as a serious repeat offender.
The respondent’s personal circumstances
The respondent is 52 years old. She was born and raised in Saigon and is the second of nine children. She is the eldest daughter in her family. She was educated to the equivalent of grade four but, as the eldest daughter, she was required to enter the workforce to support her family at about the age of 13 or 14. In 1994, she immigrated to Australia on a spousal visa after marrying her now estranged husband in 1993. Her father, who was a soldier in the South Vietnamese Army and incarcerated for about seven years when she was a young child, died in 2018 due to lung cancer. Her mother, aged 73, is still alive although she is in poor health. Her remaining family resides in Vietnam.
The respondent and her estranged husband have two children, a son now aged 27 and a daughter now aged 24. Both her children reside in Adelaide and she has a good relationship with them. The respondent’s marriage was characterised by domestic violence. Her estranged husband suffered from an acute heroin addiction. He has numerous criminal convictions for trafficking in drugs and other offences, including violence perpetrated upon the respondent. During their marriage, the respondent made numerous attempts to leave her husband which were often short lived due to her limited capacity to obtain employment and financially support herself and her children.
The respondent suffered from a heroin addiction at the time of committing the offences for which she was sentenced in 2011. Upon her release from gaol in early 2012, the respondent reconciled with her husband and moved back into the family home. However, his violence towards her continued and in 2013 she moved out of their home with her daughter while her son stayed living with her husband.
In 2014 and 2015, the respondent committed further drug trafficking offences jointly with her now estranged husband. After her release from gaol in 2018, the respondent again moved back into the family home. Her husband remained incarcerated. She resided at that property with her son until September 2020 when her husband was released from gaol. After that time, she lived at her daughter’s home.
The respondent has a history of gambling on poker machines. Her gambling became more serious in 2019 and 2020. She lost a significant amount of money and started borrowing from ‘loan sharks’ to finance her gambling habit in the hope of repaying her debts. The respondent committed the current drug trafficking offences to repay her substantial gambling debt. She claimed that she was threatened by ‘loan sharks’ and felt that she had ‘no choice’ but to trade in heroin to repay her debts.
In a psychological report dated 16 February 2022, Dr Loraine Lim opined that the respondent was experiencing the following psychological conditions at the time of the commission of the offences:
· An Impulse Control Disorder – Pathological Gambling; and
· Persistent Depressive Disorder.
Dr Lim said that there was ‘a clear and direct nexus’ between the respondent’s pathological gambling and her offending. However, Dr Lim did not believe that the respondent’s mental health was a contributing factor to her offending conduct, even though she was suffering from chronic depression arising from her long‑standing psychosocial challenges, including her history as a victim of domestic violence, her limited social support system, and her language and vocational barriers.
Dr Lim said that the respondent remains an emotionally vulnerable individual. Her language and cultural barriers continue to be a significant challenge to obtaining employment and treatment. Dr Lim believed that the respondent requires an intensive level of professional support and case management on a long-term basis if her criminogenic risk factors are to be sufficiently mitigated to reduce her risk of recidivism. Dr Lim did not believe that the respondent would necessarily receive the targeted rehabilitation services and culturally appropriate supports within the custodial environment.
At the time of sentence, the respondent had engaged with various therapeutic services including:
·     the Community Access and Support Service of South Australia (CAaSSA) on two occasions. A report from Ms Sue Bertossa, a Clinical Supervisor at CAaSSA, dated 2 November 2021, outlined her progress in positive terms. The respondent advised Ms Bertossa that she had stopped gambling and no longer experienced any urge to play the poker machines.
·     the Vietnamese Gambling Help Service on a weekly basis since 13 October 2021.
·     the OARS Community Transitions Gambling Support Services.
·     the SA Intensive Gambling Health Service where she had completed three sessions from 7 April to 21 April 2022.
·     the Seeds of Affinity, an offender support group specifically designed to support women as they adjust back into the community, where she attended on a biweekly basis.
The sentencing remarks
The sentencing Judge outlined the offending and the respondent’s personal circumstances. As to the offending, her Honour characterised it as a ‘significant drug enterprise’ involving large quantities of heroin which was particularly serious given the respondent’s past convictions for drug trafficking offences.
The sentencing Judge noted that after the respondent’s arrest on 3 August 2021, she was subsequently granted home detention bail to live with her daughter on 3 September 2021 and that she had been compliant with the conditions of her bail agreement.
The sentencing Judge emphasised that the respondent has the support of her daughter, and she has severed all ties with her husband. Her Honour considered that the respondent’s husband appeared to be a key risk factor in her offending, and she was in a vulnerable position when she committed the offending. Her Honour explained that after the respondent’s husband was released from gaol in mid‑2020 and returned to the family home he resumed his abusive behaviour towards her, causing her to leave the home. After that, the respondent struggled to find rental accommodation. She had limited financial means and resources, and her life became de-stabilised. It was in this context that the respondent sought comfort in playing the poker machines and, consequently, incurred a large gambling debt. She then committed the offences in order to repay that debt. Her Honour noted, however, that there was no evidence of her being subject to duress at the time of her offending.
In relation to home detention as a sentencing option, her Honour referred to the favourable home detention report which indicated that the respondent’s current residence is suitable for home detention and her risk of reoffending is low if she continues to live with her daughter.
As set out earlier, her Honour utilised s 26 of the Sentencing Act and imposed one sentence for all three offences. She commenced with a starting point of five years imprisonment which was reduced by 35 per cent on account of the respondent’s guilty pleas and by a further four months to reflect her time spent in custody and on home detention bail. That resulted in a head sentence of two years and 11 months. By reason of the fact she was a serious repeat offender, a non‑parole period of two years and four months was fixed, that being four-fifths of the head sentence.
The sentencing Judge found there was not good reason to suspend the sentence of imprisonment.
As to a home detention order, the sentencing Judge said:
This is particularly difficult in view of the significant quantities of heroin involved and your past convictions. On the other hand, you have taken considerable steps towards rehabilitation, you continue to access the support I have outlined; you have been compliant with your home detention bail; you have no contact with your husband; you are now in a stable and supportive home environment with your daughter; and you have, almost for the first time, the opportunity to enjoy a productive life free from domestic violence. Plainly, the safety of the community is improved if you are rehabilitated. I am concerned that to imprison you at this stage will undo the positive steps you have taken towards rehabilitation, and, whilst this is an unusual step to take given your past convictions, I will order that you serve your sentence on home detention subject to the following conditions …
The sentencing Judge proceeded to set out the conditions of the home detention bail agreement.
Legal principles
The principles governing an application by the Director for permission to appeal against sentence are well-established. Permission will only be granted in rare and exceptional circumstances.[1] A court will only grant permission to appeal where it is necessary to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes to be corrected; or if a sentence is so far below the appropriate range of sentence that it reflects an error of principle or shocks the public conscience.[2]
[1] Everett v The Queen (1994) 181 CLR 295 at 299 per Brennan, Deane, Dawson and Gaudron JJ.
[2] R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ.
A sentence which is plainly unreasonable or unjust will lead to the inevitable conclusion that the sentencing discretion has miscarried even though the nature of the error might not be apparent.[3] However, a manifestly inadequate sentence does not of itself justify permission to appeal. This is particularly so when the original sentence does not involve the imposition of an immediate term of imprisonment.
[3] Dinsdale v the Queen (2000) 202 CLR 321 at [3]-[6] per Gleeson CJ and Hayne J; [58]-[60] per Kirby J.
The question of permission to appeal involves issues ranging beyond those involved in the merits of the appeal. Where the complaint is one of manifest inadequacy, the applicant must show there are strong reasons of public policy for intervening notwithstanding the strong public interest that the respondent is not twice vexed.[4]
[4] R v McIntosh [2017] SASCFC 87 at [16] per Hinton J.
The Director’s submissions
The Director contends that the sentence imposed is so far below the appropriate standard of punishment for three offences of trafficking in a controlled drug committed by an offender with relevant prior convictions that to allow it to stand would undermine public confidence in the administration of justice.[5]
[5] R v Nemer (2003) 87 SASR 168 at [24] per Doyle CJ.
The Director relies on R v Young (‘Young’) in submitting that a starting point of imprisonment for five years was manifestly inadequate. [6] The Director submits that the respondent was a persistent, recidivist offender and she did not fall to be sentenced as an ordinary street level dealer. Further, whilst the respondent had a gambling disorder and owed a large gambling debt, she was nonetheless solely motivated by profit for the purpose of repaying that debt. The Director contends that the manifest inadequacy of the sentence is demonstrated when regard is had to the following matters:
a.the offending, as her Honour accepted, concerned a significant drug enterprise involving large quantities of heroin;
b. the respondent has nine previous drug trafficking convictions;
c.the respondent has served two terms of imprisonment for previous offending of this kind which militates against her prospects of rehabilitation;
d.her Honour appears to have had no regard to principles of general deterrence; and
e.her Honour appears to have had no regard to the principles of personal deterrence, which loomed large in relation to the respondent.
[6] R v Young (2016) 126 SASR 41.
The Director also contends that the purposes of sentencing were not met by imposing a home detention order given the respondent’s prior convictions and continued relapse into serious drug offending for commercial profit. The Director submits that the making of a home detention order did not adequately meet the objectives of sentence including the protection of the safety of the community, punishment, and the principles of general and personal deterrence.
The respondent’s submissions

The respondent contends that the sentencing Judge made no express error and took into account all relevant matters in sentence. The respondent emphasised her personal circumstances; she was the subject of domestic violence over many years causing her to leave her home and seek relief in gambling, resulting in a significant financial debt to ‘loan sharks.’ The respondent submitted that her rehabilitation was complex due to cultural barriers and language difficulties, and emphasised Dr Lim’s opinion that she will not receive targeted rehabilitation services and culturally appropriate supports within the prison system. Thus, the respondent submitted, it would be counter-productive to now frustrate her progress by ordering she serve a term of imprisonment.
The respondent contends that granting permission to appeal would be at too high a cost, in terms of justice, to the respondent.
Manifest inadequacy
The Director’s sole complaint on this application is that the sentence is manifestly inadequate in the sense that it was unreasonable or plainly unjust. This complaint is founded on two bases. First, the starting point with respect to the head sentence is below what is appropriate and what is called for by a proper application of the principles in Young. Second, it was erroneous to order the sentence be served on home detention.
In relation to the issue of manifest inadequacy, the High Court in Hili v The Queen said:[7]
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrive at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the different is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”.
(citations omitted)
[7] Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
The plurality went on to explain that ‘… what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing a sentence’.[8] An assessment of whether a sentence is manifestly excessive or inadequate thus requires consideration of the range of matters relevant to the sentencing task at hand, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. But, ultimately, manifest excess or inadequacy is a conclusion and may not permit of ‘lengthy exposition’.[9]
[8] Hili v The Queen (2010) 242 CLR 520 at [60] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[9] Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
In applying this approach, it must of course be borne in mind that there is no single correct sentence, and that sentencing judges should be allowed ‘as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’.[10]
[10] Markarian v The Queen (2005) 228 CLR 357 at [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ citing Johnson v The Queen (2004) 78 ALJR 616 at [5] per Gleeson CJ, [26] per Gummow, Callinan and Heydon JJ.
In Young, this Court stated that sentences of four to seven years are appropriate for drug trafficking offences where street level dealers are motivated to a greater or lesser extent by profit.[11] Sentences approaching the ten year maximum for the basic trafficking offence must be reserved for middle order dealers and persistent or recidivist street level dealers.[12] The Chief Justice said:[13]
The offending of a street dealer whose addiction has left him or her largely impoverished and who trades in very small amounts only to feed his or her addiction is at the lower end of the scale of objective seriousness. Other street dealers may not use at all or may be only occasional social uses who engage in street trading primarily to fund a comfortable, usually hedonistic, lifestyle. Other street level dealers, motivated by profit alone, may sell drugs directly to the end user but not use drugs at all.
Sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit.
…
There will be relatively greater scope for rehabilitation in the case of a first offender dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders.
Sentences approaching the 10 year maximum for the base trafficking offence must be reserved for those middle order dealers, and persistent or recidivist street dealers.
[11] R v Young (2016) 126 SASR 41 at [66] per Kourakis CJ (with whom Vanstone and Stanley JJ agreed).
[12] R v Young (2016) 126 SASR 41 at [68] per Kourakis CJ (with whom Vanstone and Stanley JJ agreed).
[13] R v Young (2016) 126 SASR 41 at [65]-[68] per Kourakis CJ.
Whilst the respondent fell to be sentenced as a street level dealer in relation to all three offences, she was in possession of a significant amount of heroin on the 25 August 2021 (Counts 2 and 3). If sold in ‘taste’ amounts it would be worth $5,500 and between $12,000 and $14,000, respectively.
The sentencing Judge correctly characterised her offending as ‘a significant drug enterprise involving large quantities of heroin’.
The respondent’s offending was also particularly grave in the context of her antecedents. She has nine prior convictions for drug trafficking offences and has served two discrete periods of imprisonment and parole without being deterred from re-offending. Indeed, the respondent had only recently completed parole in respect of the offending for which she was sentenced in 2017 when she committed the current offences. She was also motivated to offend to a greater or lesser extent by profit, albeit to re-pay a significant gambling debt. Whilst she was not offending to maintain a luxurious or hedonistic lifestyle, she fell to be sentenced as a persistent and recidivist street level dealer of heroin conducting a significant drug trading enterprise.
The respondent’s personal circumstances excite much sympathy. She was the victim of considerable domestic violence which ultimately led her to leave her family home and rendered her vulnerable to a gambling addiction resulting in financial debt. To that extent, there was a nexus between the domestic violence she endured, her pathological gambling disorder and her offending. That, to some extent, provided an explanation for her offending and reduced her moral culpability.
The respondent’s rehabilitative efforts are also commendable. Since her arrest, she has undertaken counselling and therapeutic treatment. There are various supports in place, and she has secured stable accommodation with her daughter. There is no doubt that she would not receive the same level of culturally sensitive psychological treatment in prison and her rehabilitative progress frustrated should an immediate term of imprisonment be imposed.
Notwithstanding those matters personal to the respondent, we are satisfied that a starting point of five years imprisonment for all three offences was outside of the permissible range for these offences and this offender given the quantities of heroin involved and her significant antecedents for similar offending. She could not be characterised as an ordinary street level dealer as discussed in Young. Rather she fell to be sentenced as a persistent recidivist offender. The head sentence and resulting statutorily mandated non-parole period were manifestly inadequate.
As part of the complaint that the sentence is manifestly inadequate, the applicant also contends that the sentencing Judge erred in her decision to order that the sentence be served on home detention. Pursuant to s 71 of the Sentencing Act there is a two-stage process in determining whether to order that a sentence be served on home detention.[14] As this Court said in R v Best:[15]
This court must consider whether the defendant is a suitable person to serve a sentence on home detention, and, if so, whether having regard to the full range of sentencing considerations, the sentence should be suspended and an order made that the defendant serve the sentence on home detention. The determination of whether the defendant is a suitable person involves a consideration of matters focussed upon the personal circumstances of the defendant. This involves consideration of matters such as the defendant’s capacity to support himself or herself in private accommodation, whether he or she is likely to comply with the conditions of home detention, and the extent to which the making of an order would support the defendant’s prospects of rehabilitation. In deciding whether the sentence should be suspended and a home detention order made, the court must consider the full range of sentencing considerations which include not only the rehabilitation of the offender but also the objectives of due punishment, denunciation and general deterrence. In deciding this issue, the safety of the community is the paramount consideration. The court must also take into account the impact on the victim, the defendant’s spouse / domestic partner, and any other resident of the premises. Otherwise the same factors that are relevant to determining the head sentence and whether good reason exists to suspend the sentence of imprisonment are relevant to determining whether to make a home detention order.
[14] R v Dell (2016) 126 SASR 571 at [45]-[48] per Doyle J (with whom Kelly and Parker JJ agreed).
[15] R v Best [2017] SASCFC 55 at [48] per Stanley J (with whom Parker and Lovell JJ agreed).
Thus, it can be seen that the discretion to make a home detention order must be exercised having regard to all relevant sentencing considerations. Protection of the safety of the community is the paramount consideration. As this Court said in R v Filipponi,[16] when sentencing for serious drug trafficking offences, if the principles of general deterrence and punishment have operated to ‘preclude a suspended sentence then, in the ordinary case, it is unlikely that the purposes of sentencing will be met by imposing a home detention order’.[17]
[16] R v Filipponi (2016) 126 SASR 464.
[17] R v Filipponi (2016) 126 SASR 464 at [37] per Kourakis CJ.
In the present case, the sentencing Judge found there was not good reason to suspend the sentence. Although not expressly stated, that must have been on the basis that the offending was too serious, particularly viewed in light of the respondent’s prior convictions for similar offending.
The sentencing Judge had regard to a positive home detention report and the respondent’s significant rehabilitative progress. In ordering that the sentence be served on home detention, her Honour also took into account the respondent’s compliance with her home detention bail conditions, that she had the support of her daughter, and the fact that she would not receive the same level of treatment if incarcerated.
However, the respondent had committed serious trafficking offences involving large quantities of heroin, a dangerous and addictive drug. She had not been personally deterred by previous sentences of imprisonment or periods of parole imposed for similar offending. We do not consider that a home detention order achieved the sentencing objectives of punishment or general and personal deterrence. It was not appropriate in the circumstances of this case to order the sentence be served on home detention.
We are satisfied this sentence is manifestly inadequate by reason of the length of the sentence and the making of a home detention order.
The question remains whether permission to appeal should be granted. The respondent has been the subject of a home detention order and has remained in the community since 15 June 2022. She has embarked on the rehabilitative programs outlined earlier. She is living in stable accommodation with the support of her daughter. To quash the sentence and order that she serve an immediate term of imprisonment is a significant step with undoubtedly harsh consequences for the respondent. However, bearing in mind the seriousness of these offences particularly in light of her significant criminal antecedents, we are satisfied that to allow the sentence to remain would undermine public confidence in the administration of justice notwithstanding the public interest in ensuring that the respondent is not twice vexed. Permission to appeal should be granted. We would also not exercise any residual discretion (if available).
Re-sentence
In relation to Count 1, given the small quantity of heroin involved, we would impose a sentence of imprisonment for four years.
In relation to Counts 2 and 3, given those offences were committed on the same occasion, we would proceed pursuant to s 26 of the Sentencing Act. Bearing in mind the large quantities of heroin involved and the respondent’s prior convictions for similar offending, we would impose one penalty of seven years imprisonment for both offences.
The respondent committed all three offences over three days and was motivated to commit them for the same reason, namely, to repay a significant gambling debt. Given the close connection in time and circumstance between all offences, we would make the sentences wholly concurrent.
We would reduce the head sentence of imprisonment of seven years by 35 per cent on account of the respondent’s guilty pleas to four years, six months and 19 days. The respondent is a serious repeat offender. A non-parole period of three years and eight months is fixed, that being approximately four fifths of the head sentence. We would further reduce both the head sentence and non-parole period by four months on account of time spent in custody and on home detention bail, and by three months for time spent on home detention bail as part of the quashed sentence. Accordingly, a head sentence of three years, 11 months and 19 days with a non-parole period of three years and one month is imposed.
Orders
1.     Permission to appeal is granted and the appeal is allowed.
2.     The sentence of the District Court is quashed.
3.A head sentence of imprisonment of three years, 11 months and 19 days years and a non‑parole period of three years and one month is imposed.
4.     The sentence will commence today.